967 F.

2d 1463

15 O.S.H. Cas. (BNA) 1633, 15 O.S.H. Cas. (BNA) 1768,

1992 O.S.H.D. (CCH) P 29,742
J. Kent DANIELS, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.
No. 91-1042.

United States Court of Appeals,

Tenth Circuit.
June 25, 1992.
1

Jean E. Dubofsky, Williams & Trine, P.C., Boulder, Colo. (William A. Trine,
Williams & Trine, P.C., with her on the brief), for plaintiff-appellant.

Elizabeth A. Strange, Trial Atty. (Stuart M. Gerson, Asst. Atty. Gen., Phyllis J.
Pyles, Asst. Director, Michael J. Norton, U.S. Atty., with her, on the brief), U.S.
Dept. of Justice, Washington, D.C., for defendant-appellee.

Before BRORBY and McWILLIAMS, Circuit Judges, and ALLEY* , District

Judge.

ALLEY, District Judge.

On September 11, 1984, plaintiff, while working in a lumber mill, was

seriously injured when an end blade on a trimmer saw flew off its motor shaft,
went through a wire mesh screen, and hit him on the legs. Plaintiff's employer
was issued a citation by the Occupational Safety and Health Administration
("OSHA") for violating 29 C.F.R. 1910.265(e)(4)(ii)(b), the regulation that
pertains to the guarding required for end blades on trimmer saws. Plaintiff
asserts that the United States is liable for his injuries under the Federal Torts
Claims Act ("FTCA") because OSHA was negligent in its inspection of the
mill on February 4, 1981, and that this negligence was the cause in fact of his
injuries. See generally 28 U.S.C. 1346(b), 2671, et seq.

After presentation of plaintiff's case in chief, the trial court dismissed his action
for lack of subject matter jurisdiction. The court reasoned that the United

States' was immune from tort liability under the discretionary function
exception to the FTCA. 28 U.S.C. 2680(a). Plaintiff appeals this judgment of
dismissal. We affirm.
I.
Standard Of Review
7

The district court's determination that it lacked subject matter jurisdiction under
the discretionary function exception to the FTCA is reviewed de novo. Weiss v.
United States, 889 F.2d 937, 938 (10th Cir.1989); McMichael v. United States,
856 F.2d 1026, 1031 (8th Cir.1988); Starrett v. United States, 847 F.2d 539,
541 (9th Cir.1988).

II.
Discretionary Function Exception
8

The FTCA authorizes suits to recover for personal injuries caused by federal
employees in cases "where the United States, if a private person, would be
liable." 28 U.S.C. 1346(b). One exception to this waiver of sovereign
immunity is the discretionary function exception, which precludes liability for "
[a]ny claim ... based upon the exercise or performance or the failure to exercise
or perform a discretionary function or duty." 28 U.S.C. 2680(a).

The discretionary function exception evidences congressional intent to "prevent

judicial 'second guessing' of legislative and administrative decisions grounded
in social, economic, and political policy through the medium of an action in
tort." United States v. S.A. Empresa de Viacao Aerea Rio Grandense ("Varig
Airlines"), 467 U.S. 797, 814, 104 S.Ct. 2755, 2765, 81 L.Ed.2d 660 (1984).
The Supreme Court refined this concept by stating that "the discretionary
function exception will not apply when a federal statute, regulation, or policy
specifically prescribes a course of action for an employee to follow." Berkovitz
by Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958, 100
L.Ed.2d 531 (1988) (emphasis added); see also Ayala v. Joy Manufacturing
Co., 877 F.2d 846, 848 (10th Cir.1989); accord Weiss v. United States, 889
F.2d 937, 938 (10th Cir.1989). "In sum, the discretionary function exception
insulates the Government from liability if the action challenged in the case
involves the permissible exercise of policy judgment." Berkovitz, 486 U.S. at
537, 108 S.Ct. at 1959.

III.

OSHA's Safety Regulation

10

The statement of congressional findings in the Occupational Safety and Health

Act clearly indicate that OSHA regulations are "grounded in social, economic,
and political policy." Varig Airlines, 467 U.S. at 814, 104 S.Ct. at 2765.
"Congress finds that personal injuries and illnesses arising out of work
situations impose a substantial burden upon, and are a hindrance to interstate
commerce in terms of lost production, wage loss, medical expenses, and
disability compensation payments." 29 U.S.C. 651. OSHA's regulatory
scheme is derived from Congress' economic and social policies that insure
safety in the work place.

11

The portion of the OSHA regulation cited by plaintiff provides that "[t]he end
saws on the trimmer shall be guarded." No kind of guard is specified in
regulations. 29 C.F.R. 1910.265(e)(4)(ii)(b). On February 4, 1981, an OSHA
inspector instructed plaintiff's employer to remove the existing wood guard
from its trimmer saw and replace it with a wire mesh guard. After the accident,
other OSHA inspectors cited plaintiff's employer for violating the same
regulation. These OSHA inspectors found that the wire mesh guard was not in
compliance with the regulation at issue here. What complies and what does not
is obviously left to judgment and discretion.

12

While the regulation is phrased in mandatory language, the initial OSHA

inspector was exercising discretion when he ordered the wood guard replaced
by a wire mesh guard. The regulations not only omit to delineate which
materials are and are not appropriate for the guard, but omit to specify the harm
the guard is intended to deter. Textual references in the regulations suggest that
the purpose of the guard may have been to protect workers from flying debris,
nails, or wood chips, and not the eventuality of the blade's flying off its holder.
Determination of the adequacy of any guard is in the eye of the individual who
inspects the saw.

13

The conduct of the OSHA inspector cannot be discretionary "unless it involves

an element of judgment or choice." Berkovitz, 486 U.S. at 537, 108 S.Ct. at
1959. Judgment and choice on the part of the inspector is the focus of the
analysis, and not the fact that discretion is exercised in negligent manner.
Barnson v. United States, 816 F.2d 549, 553 (10th Cir.1987). The OSHA
inspector at issue exercised just such judgment and choice when he
recommended a mesh guard for the end saw. His actions were "discretionary
regulatory authority of the most basic kind." Varig Airlines, 467 U.S. at 81920, 104 S.Ct. at 2767. Hence, under the circumstances of this case, we find the
United States immune from tort liability under the discretionary function

exception to the FTCA.

Conclusion
14

For the reasons stated above, the judgment of the district court is AFFIRMED.

Honorable Wayne E. Alley, United States District Judge for the Western
District of Oklahoma, sitting by designation